Citation Nr: 19171908 Decision Date: 09/17/19 Archive Date: 09/17/19 DOCKET NO. 18-53 692 DATE: September 17, 2019 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. The Veteran’s military occupation specialty (MOS) made it highly probable that he was exposed to excessive noise during active service and as such, excessive noise exposure is conceded. 2. The objective medical evidence shows that the current disability of bilateral hearing loss is not caused by an event, injury or illness during active service, nor is it etiologically related to it. 3. The objective medical evidence shows that bilateral hearing loss did not manifest to a compensable degree within one year of separation from active service. 4. The objective medical evidence shows that the current disability of tinnitus is not caused by an event, injury or illness during active service, nor is it etiologically related to it. 5. The objective medical evidence shows that tinnitus did not manifest to a compensable degree within one year of separation from active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326, 3.385. 2. The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1968 to May 1972. Service Connection Generally, service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic diseases may be service connected on a presumptive basis if manifested to a compensable degree in a specified period after service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. That period is usually one year. 38 C.F.R. § 3.307(a)(3). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). VA considers sensorineural hearing loss and tinnitus “other organic diseases of the nervous system” included among chronic diseases. Under 38 C.F.R. § 3.303(b), an alternative method of establishing an in-service disease or injury and a nexus for chronic diseases is through a demonstration of continuity of symptomatology. 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. The Veteran underwent a November 2016 VA examination in connection with these claims. The examination report contains diagnoses of tinnitus and bilateral hearing loss in conformity with VA disability standards. See 38 C.F.R. § 3.385. The Board finds the evidence establishes current disabilities of both tinnitus and bilateral hearing loss. The Veteran is seeking entitlement to service connection for bilateral hearing loss and tinnitus due to in-service noise exposure. Specifically, the Veteran asserts that he was not provided adequate hearing protection while performing his MOS duties during service. The Veteran’s personnel records reflect that his MOS was Munitions Maintenance Specialist. The Board finds excessive noise exposure consistent with the conditions of service as a munitions specialist. 38 U.S.C. § 1154(a). Thus, the Board finds the Veteran had excessive noise exposure during service. The remaining question in this case is whether either current disability may be presumptively or directly related to the in-service excessive noise exposure. The Veteran has submitted written statements and his statements are supported by his post-service VA medical treatment record. Repeated complaints of and references to bilateral hearing loss and tinnitus are made from 2002 through 2016 in the Veteran’s VA medical treatment record. Where the Veteran’s contentions are not supported in the record concerns evidence of hearing loss and tinnitus in service or records documenting an in-service event, injury, disease, or symptoms of a disease potentially related to a subsequent, now current, audiological disability. As it is, the evidence of record shows that the Veteran’s service treatment records (STRs) are absent for any complaint or diagnosis of bilateral hearing loss or of tinnitus. There is no indication from the service entrance or exit examination reports that the Veteran complained of symptoms of hearing loss or auditory problems or of ringing in the ears or any other symptom of tinnitus. The Veteran was seen for multiple complaints during service, including anxiety and back pain. At no time was reference made to hearing loss or tinnitus. The Veteran’s entrance examination contains an audiological evaluation, at which time auditory thresholds were recorded. However, because it is unclear whether such thresholds were recorded using American Standards Association (ASA) units or International Standards Organization-American National Standards Institute (ISO-ANSI) units, the Board will consider the recorded metrics under both standards, relying on the unit measurements most favorable to the Veteran’s appeal. As it relates to VA examinations and VA records, audiological reports were routinely converted from ISO-ANSI results to ASA units until the end of 1975 because the regulatory standard for evaluating hearing loss was not changed to require ISO-ANSI units until September 9, 1975. In light of the above, and where necessary to facilitate data comparison for VA purposes in the decision below, including under 38 C.F.R. § 3.385, audiometric data originally recorded using ASA standards will be converted to ISO-ANSI standard by adding between 5 and 15 decibels to the recorded data as follows: Hertz 250 500 1000 2000 3000 4000 6000 8000 add 15 15 10 10 10 5 10 10 As such, the Veteran’s April 1968 entrance examination contain audiometric findings that are unclear as to the units used, and are as follows: Original 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 15 5 5 N/A 5 Left 5 5 10 N/A 5 ISO-ANSI Conversion 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 30 15 15 N/A 10 Left 20 15 20 N/A 10 The Veteran’s STRs also include a September 1968 examination that contains audiometric findings where it is indicated that ASA units were used, and are as follows: ASA 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 5 5 5 5 5 Left 5 5 5 5 5 ISO-ANSI Conversion 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 20 15 15 15 10 Left 20 15 15 15 10 The Veteran’s STRs also include a March 1969 examination that does not contain audiometric findings but contains a note that there was no significant change in medical or surgical history since the Veteran’s last physical examination. The Veteran’s January 1972 separation examination contain audiometric findings and specify that the findings were recorded using ISO-ANSI units, and are as follows: 500 Hz 1000 Hz 2000 Hz 3000 Hz 4000 Hz Right 15 20 15 25 15 Left 15 20 15 15 20 Further review of post-service treatment VA medical treatment records reflects no complaint, report or diagnosis of bilateral hearing loss or tinnitus until an October 2002 note showing that the Veteran indicated difficulty hearing what others say and it was not until April 2015 when the Veteran was referred to Audiology by his primary care physician for hearing loss complaints and administered hearing aids. This approximate 30 to 40-year period between active service and the first indication of hearing loss, as well as the Veteran’s first report years after that for the purpose of VA claims for bilateral hearing loss and tinnitus in his September 2016 Fully Developed Claim application, are factors which weigh quite heavily against a finding of service incurrence, including by continuous symptoms since service from which incurrence during active service would otherwise be presumed. See Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). See also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical complaint of a claimed disability is one factor to consider as evidence against a claim of service connection). It is noted that an earlier claim for benefits was filed in November 2012. At that time no reference or complaints of hearing loss or tinnitus were noted. This further suggests that the pathology was not present at that time. In November 2016, the Veteran was afforded a VA examination. The November 2016 VA examiner diagnosed the Veteran with bilateral hearing loss. The November 2016 VA examiner opined that the Veteran’s hearing loss is not at least as likely as not caused by or a result of an event in military service. The examiner provided the rationale that there is no significant permanent shift in the Veteran’s hearing indicated in his STRs from enlistment to separation, even with considering the ASA to ISO conversion. The examiner further addressed the potential delayed onset of hearing loss or tinnitus, providing that there is medical literature stating that there was insufficient scientific basis to conclude that permanent hearing loss in humans directly attributable to noise exposure will develop long after noise exposure ceases. The examiner concludes that the evidence is against a nexus in this case. As already stated, the STRs are devoid of reports, complaints, treatment, or diagnoses of hearing-related deficiencies or disorders, including tinnitus. No hearing loss complaints or testing appear in the record until the October 2002 report of hearing difficulty and the April 2015 Audiology referral. The Board finds that the Veteran’s current disability of bilateral hearing loss is neither caused by an event, injury or illness during active service, nor is it etiologically related to it. The Veteran’s bilateral hearing loss was not present during service. Although there are intermittent ISO-ASA conversion scores that are more than 20 dB, the scores are not consistent. The Veteran had defective hearing at the 3,000 Hertz range in the right ear only at separation, but only just. Moreover, the 2016 VA opinion expressly considered the ISO-ASA conversion and found these results to be within test variability. The Veteran did not have a disability at that time and the medical examination report indicated that he did not have a hearing loss disorder. The Board cannot find a notation of a chronic disease in-service. Similarly, there is not a basis to find that the Veteran’s bilateral hearing loss was manifested to a compensable degree within one year of the Veteran’s service separation. Finally, the Board notes that the November 2016 VA opinion indicates that there is an insufficient scientific basis to conclude that noise exposure would result in permanent hearing damage long after the exposure ends weighs heavily against continuity of symptomatology or nexus. If such a possibility has not been established scientifically, the Board cannot hold that lay evidence of persistent, progressive symptoms of hearing degradation or assertions of a relationship simply cannot have probative value. Thus, the Board concludes that service connection for bilateral hearing loss is not warranted on direct or presumptive bases. The Board also finds the Veteran’s current disability of tinnitus is not caused by an event, injury or illness during active service, nor is it etiologically related to it. The Board further finds tinnitus did not manifest to a compensable degree within one year of separation from active service. The Veteran’s VA treatment records indicate he reported consistent bilateral humming in August 2015, beginning four to five years previously. The Veteran asserted in his Form 9 and during his November 2016 VA examination that he first experienced temporary ringing on multiple occasions during service. The November 2016 VA examination report indicates that he reported onset of current noise 6-8 years previously. The Veteran’s reports of temporary ringing in his ears in service are not clear diagnoses, or “notations” of a chronic disease, as is required for presumptive service connection. See Walker v. Shinseki, 708 F.3d 1331, 1339-40 (Fed. Cir. 2013). Similarly, per his lay statements, there is no indication of symptoms such as humming or ringing in his ears in the year following separation from service. His statements also do not support continuous present symptomatology since service separation. Instead, he reports onset of the current symptoms approximately thirty years after service separation. Given the gulf of time between separation symptom onset, the Board sees no basis in lay knowledge to find that the etiology of tinnitus at such a distance. The November 2016 VA examination report includes many forms of post-service noise exposure, such as employment on a railroad and use of firearms, and other factors that may damage his auditory system, such as use of ototoxic medications and consumption of caffeinated beverages. The VA examiner opined that research does not support a delayed onset of tinnitus following noise exposure alone. As with hearing loss, there would need to be evidence of auditory damage at the time of noise exposure for a nexus which is not present in this case. The Board finds this opinion weighs heavily against the claim. In light of the foregoing, the Board finds that the preponderance of the evidence is against a nexus between the Veteran’s tinnitus and in-service noise exposure. Consequently, service connection for tinnitus, presumptive or otherwise, has not been established. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The preponderance of the evidence is against the claims, the doctrine is not applicable, and the claims must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. J.B. Freeman Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Frazier, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.